N.J. Constitutional Convention: Vol. 4, Page 310

STATE OF NEW JERSEY CONSTITUTIONAL CONVENTION OF 1947COMMITTEE ON THE JUDICIARYTuesday, July 8, 1947 (Morning session)

Then, as change is necessary, the change could be made by simple acts of the Legislature.

MR. SOMMER: Isn't that because the Constitution sets up just one court and that is the Supreme Court?

JUDGE SMITH: Exactly.

MR. SOMMER: And its jurisdiction is prescribed by the Constitution and cannot be diminished?

JUDGE SMITH: Exactly.

MR. SOMMER: Now, it leaves to the Congress the determination as to whether there shall be any inferior courts and, if so, what their jurisdiction may be within the limits of the Constitution.

JUDGE SMITH: Exactly.

MR. SOMMER: It's worked out in that way, hasn't it?

JUDGE SMITH: Yes.

MR. SOMMER: The inferior courts are simply statutory courts?

JUDGE SMITH: They are statutory courts.

MR. SOMMER: The whole jurisdiction within the Constitution depends upon the will of Congress, as their existence depends upon the will of Congress. They could disestablish all inferior courts.

JUDGE SMITH: Abolish them tomorrow. But they haven't in their wisdom seen fit to do it. You see, there again we have a history of change. The original Circuit Court was a trial court in which one judge sat. The appeal then was by writ of error and by writ of certiorari to the United States Supreme Court, but the business of the Circuit Court, the trial court, became so large that we ultimately had the District Court, and the Circuit Court became an appellate court.

MR. SOMMER: And that again was due to the fact that the whole matter of appeals from inferior courts to the Supreme Court of the United States was left to definition by Congress.

JUDGE SMITH: Right.

MR. SOMMER: Now, may I ask you this question on tenure - isn't it true that in recent years committees of Congress have been seriously considering the question of whether a constitutional provision instead of impeachment might not be found for the removal of judges of the inferior federal courts?

JUDGE SMITH: They have.

MR. SOMMER: And it must be because a problem is presented, or a problem has arisen.

JUDGE SMITH: The problem is this - that the impeachment proceedings are cumbersome, and that has been the real problem. As a result they have been reluctant to undertake impeachment proceedings, but I can't say that they haven't succeeded without undertaking them, because judges have been removed. I mean, the mere threat of impeachment has effected the removal of some.